Jurisdiction of Domestic Courts (Public International Law)
by Anatol Dutta
1. Definition; sources of law
The jurisdiction of the domestic courts is not only defined by private international law (jurisdiction (PIL)). The powers of the courts to prescribe measures and to enforce decisions are also confined by public international law. Those rules of public international law are part of the general principles which delimit the jurisdiction of states. The jurisdiction of domestic courts according to public international law can best be defined negatively: the domestic courts can neither prescribe measures nor enforce decisions if their jurisdiction is limited by the principles of state immunity (see 2. below), by the exemption of certain persons (see 3. below), by the prohibition on exercising public powers on foreign territory (see 4. below) and by the prohibition on exercising public powers with undue extraterritorial impact (see 5. below).
On first sight, European Union law does not contain any provisions on the jurisdiction of a Member State’s domestic courts according to public international law. Although Union law widely regulates jurisdiction for the purposes of private international law, eg, by the Brussels I Regulation, the Brussels IIbis Regulation or the Maintenance Regulation (Reg 44/2001, Reg 2201/ 2003 and Reg 4/2009; jurisdiction (PIL)), Union law strictly distinguishes between jurisdiction according to private international law and public international law; the public international law principles on jurisdiction are regarded as having priority over the jurisdictional rules of private international law (AG Ruiz-Jarabo Colomer, Opinion in Case C-292/05 – Lechouritou  ECR I-1519 para 77). The European provisions on cross-border cooperation of the Member State courts also derogate only very reluctantly from the jurisdictional principles on public international law (see 4. below). However, notwithstanding a lack of direct derogation by Union law, modifications of public international law by Union law are not excluded. The (non-cogent) rules of public international law can be, as far as the relations of the Member States are concerned, superseded by Union law (see also 2. b) below).
2. State immunity
a) Public international law
The immunity of foreign states from domestic jurisdiction to prescribe or to enforce follows from the principle of state sovereignty and the equality of all states: Par in parem non habet imperium. The principles of state immunity are universally recognized by customary law. However, they are partly codified and modified by conventions, eg the European Convention on State Immunity of 1972 (Basle Convention) and the United Nations Convention on Jurisdictional Immunities of States and Their Property (UN Convention), whose adoption was recommended by the General Assembly of the United Nations in 2004. Additionally, some states have enacted provisions on state immunity by domestic legislation as, eg, the United Kingdom with the State Immunity Act (1978 (UK) ch 33) or the United States with the Foreign Sovereign Immunities Act (28 USCA §§ 1602 ff).
With regard to the jurisdiction of domestic courts to prescribe, the prevailing opinion understands state immunity not as an absolute but rather as a relative restriction. The foreign state as a defendant is only exempt from domestic jurisdiction insofar as the domestic procedure concerns its acta iure imperii (eg BVerfG 30 April 1963, BVerfGE 16, 27, 61; see also Arts 4 ff of the Basle Convention; Arts 10 ff of the UN Convention; ss 4 ff of the UK State Immunity Act; 28 USCA § 1605(a)(2), (4), (b)). The characterization of acts as acta iure imperii is, in principle, a question of public international law. However, at least the German Federal Constitutional Court has held that, with regard to the jurisdiction to prescribe, domestic courts should be allowed to revert to lex fori because clear-cut criteria for the definition of acta iure imperii on the level of public international law would currently be lacking (BVerfG 30 April 1963, BVerfGE 16, 27, 62). With regard to their acta iure gestionis—their private acts—foreign states are subject to domestic jurisdiction. They are—to this extent—not privileged vis-à-vis other private persons.
Furthermore, foreign states are also protected against the jurisdiction of domestic courts to enforce their decisions. However, according to customary international law, in this respect as well, foreign states do not enjoy absolute immunity (cf, however, Art 23 of the Basle Convention). Yet there is no principle of connectivity in public international law providing that domestic authorities can only attach objects of foreign states which serve a private purpose connected to the claim to be enforced (in that direction, however, Cass. civ. 14 March 1984,  Rev l’arbitrage 69, 71; differently later CA Paris 9 July 1992,  Rev l’arbitrage 133 and Cass. civ. 25 January 2005,  Rev crit dr int priv 123). Rather, domestic authorities have no access to objects of foreign states which serve public purposes of that state (Art 19(c) of the UN Convention; s 13(4) of the UK State Immunity Act; 28 USCA §§ 1609 ff; BVerfG 13 December 1977, BVerfGE 46, 342, 392; BVerfG 12 April 1983, BVerfGE 64, 1, 40). Here again, the purpose of the object attached can be characterized against the background of the law of the enforcing state, insofar as criteria on the level of international law are lacking. Although the courts, with regard to the jurisdiction to enforce, often do not expressly revert to their own legal system (see for Germany BVerfG 13 December 1977, BVerfGE 46, 342, 394 ff; BVerfG 12 April 1983, BVerfGE 64, 1, 42), a characterization lege fori is admissible according to public international law. The enforcement regarding property of a foreign state—which serves from the perspective of the foreign state public purposes, from the perspective of the enforcing state, however, private purposes—does not endanger the sovereignty of the foreign state: the characterization of a foreign state’s property situated in the domestic court’s territory is not an exclusive matter for the foreign state but for the situs state (see BVerfG 12 April 1983, BVerfGE 64, 1, 43).
State immunity is not granted without exceptions. The foreign state can, for example, waive its immunity or submit itself to domestic jurisdiction. A waiver of immunity cannot only relate to the domestic jurisdiction to prescribe (see Art 1(2)(a) Basle Convention; Art 9 UN Convention), but also to the jurisdiction to enforce (see Art 23 Basle Convention; Art 19(a) UN Convention). A waiver with regard to the jurisdiction of the domestic courts to prescribe does, however, not necessarily also contain a waiver with regard to the jurisdiction to enforce (Art 20 UN Convention; BVerfG 13 December 1977, BVerfGE 46, 342, 366 ff), because enforcement measures interfere, in the regular case, much more directly with the sovereignty of the foreign state than the mere court decision. Further exceptions from state immunity for torts and delicts committed by a foreign state extraterritorially are contained in some of the immunity conventions and domestic immunity laws (Art 11 Basle Convention; Art 12 UN Convention; see also for the United Kingdom s 5 of the State Immunity Act; for the United States 28 USCA § 1605(a)(5)). It is, however, highly disputed whether these codified exceptions reflect customary international law and—especially—whether they apply to acta iure imperii effected outside the foreign state’s own territory (against that assumption eg BGH 26 June 2003, BGHZ 155, 279, 283 ff; ECtHR No 31253/96 – McElhinney v Ireland ECHR Rep 2001-XI, 37, 46 ff; see however also Liu v Republic of China, 892 F2d 1419 (9th Cir 1989)).
No exception from state immunity is, however, to be made for acta iure imperii which violate international ius cogens. An approach which would deny state immunity for such acta iure imperii has not prevailed, although the House of Lords in the Pinochet Case voiced some sympathy in favour of a relaxation of the immunity of former heads of state for acts violating compulsory rules of public international law (Regina v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 3)  1 AC 147), and although the Greek (see Areopag 4 May 2000, Case 11/2000) and the Italian courts (see notably Corte Cass 11 March 2004, Ferrini c Repubblica federale di Germania, Riv Dir Intern 87 (2004) 539; Corte Cass 29 May 2008, Repubblica federale di Germania c Presidenza Consiglio dei ministri,  91 Riv Dir Intern 896) have rejected the state immunity of the Federal Republic of Germany for claims resulting from violations of public international law by German officials during World War II. Apart from those exceptions, the national courts (eg Princz v Federal Republic of Germany, 26 F3d 1166 (DC Cir 1994); BGH 26 June 2003, BGHZ 155, 279, 283 ff; BVerfG 15 February 2006, NJW 2006, 2542, 2543; Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya  1 AC 270 (HL)) have granted state immunity even for acta iure imperii which violated public international law—a view which is also shared by the European Court of Human Rights (ECtHR No 35763/97 – Al-Adsani v United Kingdom, ECtHR Rep 2001-XI, 79, 103; ECtHR No 59021/00 – Kalogeropoulou and others v Greece and Germany, ECtHR Rep 2002-X, 415, 428 ff). Furthermore, the International Court of Justice has held in the Arrest Warrant Case (ICJ 14 February 2002, ICJ Rep 2002, 3 para 58) that at least for the immunity of incumbent governmental representatives (see 3. below) exceptions for violations of public international law have no basis in customary international law. As a reaction to the reported decisions of the Italian courts, in the meantime, Germany has started proceedings against Italy (with Greece in the meantime intervening) before the International Court of Justice (Case concerning Jurisdictional Immunities of the State), which will now have the opportunity to clarify the boundaries between state immunity and the violation of international ius cogens.
b) The impact of the European jurisdictional rules
The question, however, remains whether the principles of state immunity are indirectly superseded by European Union law. Can, for instance, a state invoke its state immunity before a Member State court if the European rules on jurisdiction, eg those of the Brussels I Regulation, provide for a jurisdiction of that Member State? Such an overlap of the European jurisdictional rules and state immunity will be rare, as the European rules are limited to civil and commercial matters (eg Art 1(1)1 Brussels I Regulation) and proceedings on acta iure imperii, for which the foreign state could claim immunity, are in the regular case not civil and commercial matters. However, due to the need of an autonomous interpretation of the civil and commercial matters concept, overlaps in grey areas between private and public law are conceivable (eg Austrian Supreme Court of Justice, OGH 14 May 2001, SZ 74/86 (p 561); Grovit v De Nederlandsche Bank  1 Lloyd’s Rep 636 (QB)).
The Brussels I Regulation contains conflict rules for cases in which the immunity of the state can be based on international treaty provisions, eg on the already mentioned Basle Convention. Although the treaties of the Member States are superseded by Union law within the boundaries of Art 351 TFEU/307 EC (see ECJ Case 235/87 – Matteucci  ECR 5589 para 22; ECJ Case C-158/91 – Levy  ECR I-4287 para 22), according to Art 71(1) of the Brussels I Regulation, the Regulation does not touch upon ‘conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction’. Notably, the Basle Convention should be regarded as such a prevailing convention, as that convention does not only define the scope of state immunity but, additionally, positively determines the jurisdiction of the domestic courts if the foreign state cannot invoke its state immunity (see Arts 2 to 11 Basle Convention).
An explicit conflict rule is, however, missing with regard to overlaps between state immunity based on customary public international law and the European jurisdictional rules. Yet a precedence of the Brussels I Regulation has to be denied here as well (AG Ruiz-Jarabo Colomer, Opinion in Case C-292/05 – Lechouritou  ECR I-1519 para 78; see also Austrian Supreme Court of Justice, OGH 14 May 2001, SZ 74/86 (p 561); Grovit v De Nederlandsche Bank  1 Lloyd’s Rep 636 (QB)). First, the Brussels I Regulation cannot affect the immunity of third states (if the European jurisdictional rules apply to proceedings against third states at all, as a third state is always ‘domiciled’ outside the Union): the European jurisdictional rules have to be interpreted in the light of Art 10 EC and now Art 4(3) TEU. Union law cannot compel Member States to violate their public international law duties towards third states—a consideration which is also expressed by Art 351(1) TFEU/ 307(1) EC, providing that existing international duties of the Member States are not affected by the membership in the European Union. But also with regard to proceedings against other Member States the European jurisdictional rules do not prevail even if those rules provide for the jurisdiction of a domestic court, although according to public international law the foreign Member State could claim state immunity. Notably the effet utile principle (principle of effectiveness) does not require a precedence of the European jurisdictional rules, although national procedure is subject to the practical effectiveness of the European rules (see ECJ Case 119/84 – Capelloni  ECR 3147 para 21; ECJ Case 288/82 – Duijnstee  ECR 3663 paras 13 ff; ECJ Case 145/86 – Hoffmann  ECR 645 para 29; ECJ Case 365/88 – Kongress Agentur Hagen  ECR 1845 para 20; ECJ Case C-68/93 – Shevill  ECR I-415 para 36; ECJ Case C-159/02 – Turner  ECR I-3565 para 29; ECJ Case C-420/07 – Apostolides  ECR I-3571 para 69). The ECJ appears, in general, to interpret Union law in favour of international law (see ECJ Case C-286/90 – Poulsen  ECR I-6019 para 9; ECJ Case C-188/07 – Commune de Mesquer  ECR I-4501 para 81). In particular, the ECJ had in van Duyn already shown its unwillingness to assume a tacit derogation of public international law by Union law (ECJ Case 41/74 – van Duyn  ECR 1337 para 22).
3. Exemption of certain persons from domestic jurisdiction
Not only foreign states are partly excluded from domestic jurisdiction. According to public international law, certain persons also enjoy personal immunity. Apart from heads of state and governmental representatives (ICJ 14 February 2004, Arrest Warrant Case, ICJ Rep 2002, 3) this applies especially to foreign diplomatic and consular staff according to the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. If the European jurisdictional rules provide for the jurisdiction of a Member State court, here again the European rules do not impact the exemption of those persons (see 2. b) above).
4. No exercise of public powers in foreign territory
The jurisdiction of the domestic courts is also limited by the fundamental principle of public international law that a state shall not exercise public powers outside its own territory. The Permanent Court of International Justice held in the Lotus Case (PICJ 7 September 1927, PCIJ ser A, No 9, p 18) that ‘the first and foremost restriction imposed by international law upon a state is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another state’. The prohibition of extraterritorial exercise of public power is universally accepted; every exercise of public power in foreign territory negates the exclusive public powers of the foreign state for its own territory and potentially endangers its own existence.
Although it is universally accepted that no state can exercise public power on foreign soil, it is unclear when a State exercises public power abroad. As the prohibition of extraterritorial exercise of public power is a rule of public international law, one could argue that public international law autonomously determines when public power is exercised. However, for the qualification of acts done by the state abroad it appears more sensible to revert to the law of the state in whose territory the act was done. The prohibition of extraterritorial exercise of public power follows from the sovereignty of the state on whose territory a foreign state acts. In principle, this state could not tolerate any—even private—acts of a foreign state within its territory. It has, however, to be assumed that a state only prohibits acts of foreign states which are regarded by its own law as an exercise of public power. It is only in that case that the sovereignty in one’s own territory is questioned because only in that case does the foreign state act as a competing public authority and endanger its existence; this is not true where the foreign state acts—according to local law—in its private capacity.
In the area of civil justice, European Union law only very reluctantly derogates from the prohibition of extraterritorial exercise of public power. Article 22 No 5 of the Brussels I Regulation, for example, stipulates that for proceedings concerned with the enforcement of judgments, it is the courts of the Member State in which the judgment has been or is to be enforced which are exclusively competent. Of great note, however, are the provisions on the direct taking of evidence abroad by the requesting courts of a Member State in the territory of another Member State according to Arts 17 ff of the Evidence Regulation (Reg 1206/2001; evidence (international). According to those provisions the domestic courts can, in principle, directly take evidence abroad if the taking of evidence can be performed on a voluntary basis without the need for coercive measures (Art 17(2)). The direct taking of evidence by a court abroad can only be declined by the requested Member State on limited grounds (Art 17(5)). Extraterritorial acts of the domestic courts are also partly permitted by the European Service Regulation (Reg 1393/2007; service of documents). According to Art 13(1) of that Regulation, the Member States are free to serve documents on persons residing in another Member State directly through its diplomatic or consular agents, however, without application of any compulsion; yet according to Art 13(2) the Member States can limit such direct service of documents to nationals of the serving Member State. Furthermore, the Service Regulation allows in Art 14 a direct service of documents by mail—if such a service can be characterized as an exercise of public power at all.
5. No exercise of public powers with undue extraterritorial impact?
Whereas the prohibition of extraterritorial exercise of public power is an absolute principle (see 4. above), public international law, in principle, does not prevent states—and their courts—from exercising their powers intraterritorially but with extraterritorial impact. The Permanent Court of International Justice had already held in the above-mentioned Lotus Case (PCIJ 7 September 1927, PCIJ ser A, No 10, p 19) that it ‘does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad’. However, the Lotus rule was restricted by the International Court of Justice in the Barcelona Traction Case (ICJ 5 February 1970, ICJ Rep 1970, 3, 105); public international law contains limits on the jurisdiction to prescribe in cross-border cases; there would be an ‘obligation [...] to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by, another state’. Where exactly the borders of such an ‘undue encroachment’ lie is, however, unclear. Often it is said that the state can only exercise its jurisdiction insofar as it possesses a ‘genuine link’ with the case to be regulated. Notably, in cross-border cases links to more than one state typically exist. An ‘undue encroachment’ will, therefore, be rare as almost always connections to the state exercising its jurisdiction can be construed.
The states are, thus, to a large extent free to allow their courts to exercise their jurisdiction in cross-border cases. Notably, the courts can, provided a genuine link exists, order parties to perform or omit certain acts abroad. States can even enforce such orders within their own territory through compulsory means. The existence of a genuine link for court proceedings is safeguarded by the jurisdictional rules of private international law (jurisdiction (PIL)), although public international law does not require specific connecting factors for jurisdiction. As a consequence, the European jurisdictional rules ensure that the Member State courts in civil matters do not exercise their powers with undue extraterritorial impact.
Wilhelm Karl Geck, ‘Hoheitsakte auf fremdem Staatsgebiet’ in Karl Strupp, Hans-Jürgen Schlochauer and others (eds), Wörterbuch des Völkerrechts, vol I (2nd edn, 1960) 795; FA Mann, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours 1; Michael Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 46 British Year Book of International Law 145; Juliane Kokott, ‘Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen’ in Festschrift Rudolf Bernhardt (1995) 135; Bernhard H Oxman, ‘Jurisdiction of States’ in (1997) Encycl Publ Int’l L vol III 55; Santiago Torres Bernárdez, ‘Territorial Sovereignty’ in (2000) Encycl Publ Int’l L vol IV 823; Pasquale De Sena and Francesca De Vittor, ‘State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case’ (2005) 16 European Journal of International Law 89; Andrew Scott, ‘Exclusionary Principles and the Judgments Regulation’ (2007) 3 Jour PIL 309; Hannah Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’ (2009) 57 Am J Comp L 631.